THE CONSTITUTIONAL RIGHT TO SOLICIT
POTENTIAL CLASS MEMBERS IN A CLASS
ACTION
Vance G. Camisa*
I. INTRODUCTION
The solicitation of potential class members in a class action by plain-tiffs' attorneys is, in many cases, an important requisite for successfully maintaining the suit.1 Requirements of a minimum number of plaintiffs,2 opt-in rules,' and the high cost of maintaining a class suit combined with small awards4 all necessitate solicitation of potential class members. Fur-ther, with laws varying from state to state, forum shopping creates the potential for inequitable results in similar cases. Recognition of a right to such solicitation based on the first amendment would permit the needed uniformity by allowing for solicitation in those contexts where practical considerations require it.
The Supreme Court, in Gulf Oil Co. v. Bernard,' had the opportunity to address the issue of soliciting potential members in a class action within the context of the first amendment.7 By rendering a narrow deci-sion based on the underlying policies of Rule 23 of the Federal Rules of Civil Procedure, the Court left in place a plethora of state and federal standards, and in so doing perpetuated confusion." In a later decision, Zauderer v. Office of Disciplinary Counsel,' the Court seems to have rec-tified this problem. While the factual situation in Zauderer differs from that in Bernard, the latter opinion touches on very similar issues and, as
* Associate, Schnader, Harrison, Segal & Lewis, Philadelphia, Pennsylvania. B.A. 1983, J.D. 1988, University of Pennsylvania. The author gratefully acknowledges indebtedness for critique and insightful suggestions and commentary from Ira P. Tiger, partner and Litiga-tion Department Chairman of Schnader, Harrison, Segal & Lewis.
1. See infra notes 119-36 and accompanying text. 2. See infra note 121 and accompanying text. 3. See infra note 131 and accompanying text.
4. See infra note 135 and accompanying text.
5. See infra note 138 and accompanying text. 6. 452 U.S. 89 (1981).
7. Id. at 103-04.
8. See infra notes 117-39 and accompanying text.
9. 471 U.S. 626 (1985). For a general discussion of Zauderer, see Bell, The Supreme
this Article shall develop, Zauderer was in fact a more difficult case to decide constitutionally than was Bernard. The Court's decision in Zauderer provides a sound constitutional basis for the right to solicit po-tential class members.
This Article will begin with brief overviews of Bernard and Zauderer. Section III will address the state interests at issue in Bernard, using ra-tionales set forth in Zauderer, to show that those state interests are not substantial. Section IV will discuss the major factual differences between Zauderer and Bernard in an effort to show that while divergent state in-terests are potentially possible, they do not actually exist. Further, Ber-nard presents a stronger argument for the first amendment right. Section V will set forth the fundamental parameters of the constitutional right. Finally, section VI will address the policy considerations for and against the right to solicit class members, emphasizing the benefits gained from the uniformity that would result from such a right.
II. OVERVIEWS OF GULF OIL Co. v. BERNARD' ° AND ZAUDERER V. OFFICE
OF DISCIPLINARY COUNSEL"
A. Gulf Oil Co. v. Bernard
Gulf Oil Co. v. Bernard was filed as a class action.2 A modified order was issued which banned all communications regarding the class action between parties (or their counsel) and actual or potential class members who were not formal parties, absent court approval.'3 Pursuant to this order, plaintiffs' counsel drew up a leaflet which urged class members to consult counsel and which contained the names and addresses of
plain-10. 452 U.S. 89 (1981). 11. 471 U.S. 626 (1985).
12. 452 U.S. at 92. The suit was based on Title VII of the Civil Rights Acts of 1866 & 1964, 42 U.S.C. § 2000e et seq. (1982). Id.
13. 452 U.S. at 94-95. FED. R. Civ. P. 23(d) provides: "In the conduct of actions to
which this rule applies, the court may make appropriate orders ... imposing conditions on the representative parties or on intervenors ... [and] dealing with similar procedural mat-ters." According to the Advisory Committee notes regarding FED. R. CIv. P. 23, "[n]otice is available fundamentally 'for the protection of the members of the class or otherwise for the fair conduct of the action and should not be used merely as a device for the undesirable solicitation of claims." FED. R. Civ. P. 23 (Notes of Advisory Committee on Rules-1966
Amendment) (citation omitted). See generally J. FRIEDENTHAL, M. KANE & A. MILLER, CIVIL
CLASS MEMBER SOLICITATION
tiffs' lawyers, and submitted it for court approval." The court denied the motion in a one-sentence order with no explanation.5
On appeal from the district court, a divided panel of the United States Court of Appeals for the Fifth Circuit affirmed.'s The panel major-ity held that the district court's order was not a prior restraint and that there was no chilling effect on protected speech."7 The Fifth Circuit
granted a hearing en banc and set aside the order, holding it to be an unconstitutional prior restraint on protected speech.'9
The Supreme Court affirmed. The Court adopted a three-part test based on Rule 23 of the Federal Rules of Civil Procedure.' First, a court must determine if the limiting order is consistent with the general poli-cies embodied in Rule 23.20 Second, the court must determine if the order embodies the least restrictive means available in terms of limiting speech." Finally, the order must be based on clear and specific findings
14. 452 U.S. at 96-97. The proposed notice read in full: ATTENTION BLACK WORKERS OF GULF OIL.
The Company has asked you to sign a release. If you do, you may be giving up very important civil rights. It is important that you fully understand what you are getting in return for your release. IT IS IMPORTANT THAT YOU TALK TO A
LAWYER BEFORE YOU SIGN. These lawyers will talk to you FOR FREE:
[names and addresses of respondents' counsel].
These lawyers represent six of your fellow workers in a lawsuit titled Bernard
v. Gulf Oil Co., which was filed in Beaumont Federal Court on behalf of all of you. This suit seeks to correct fully the alleged discriminatory practices of Gulf.
Even if you have already signed the release, talk to a lawyer. You may consult another attorney. If necessary, have him contact the above-named lawyers for more details. All discussions will be kept strictly confidential.
AGAIN, IT IS IMPORTANT THAT YOU TALK TO A LAWYER. Whatever
your decision might be, we will continue to vigorously prosecute this lawsuit in order to correct all the alleged discriminatory practices of Gulf Oil.
Id. at 96 n.6.
15. Id. at 97.
16. 596 F.2d 1249 (5th Cir. 1979). 17. Id. at 1261-62.
18. 619 F.2d 459, 478 (5th Cir. 1980).
19. See infra notes 20-22 and accompanying text; see also Lancaster Manhum Town-ship School Dist. v. Lake Asbestos of Quebec, LTD, 842 F.2d 671, 682-84 (3d Cir. 1988) (In
re School Asbestos Litigation) (employing the three-part Bernard test); Williams v. United
States Dist. Court, 658 F.2d 430 (6th Cir. 1981) (describing the three-part Bernard test). 20. Bernard, 452 U.S. at 99. The policies underlying Rule 23 include: 1) The vindica-tion of the rights of other individuals by named plaintiffs, where those other individuals might not consider litigation worthwhile where the cost may exceed the optimum result; 2) promotion of a single lawsuit where common interests or common questions of law or fact prevail, and; 3) prevention of stirring up of litigation. See id. at 99 n..
21. Id. at 102. See generally 3 R. ROTUNDA, J. NOWAK & J. YOUNG, TREATISE ON CON-STITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 20.10 (1986) (general discussion of the least
restrictive means test in the context of free speech). 1989-901
that balance the need for a limitation against potential interference of the parties' rights.2
The Court found that the district court had issued no factual find-ings or conclusions of law, and had not carefully weighed the competing factors.2 The Court thus concluded that the district court had abused its discretion24 and, accordingly, affirmed the judgment of the Fifth Circuit without deciding the standards mandated by the first amendment."9
B. Zauderer v. Office of Disciplinary Counsel
In Zauderer, an attorney ran an advertisement in thirty-six Ohio newspapers recommending his services in representing women who suf-fered injuries as a result of using Dalkon Shield Intrauterine Devices.2
The Ohio Office of Disciplinary Counsel filed a complaint charging the attorney with a number of disciplinary violations, including recom-mending employment of himself to non-lawyers who had not sought his advice in regard to employing an attorney and accepting employment re-sulting from his having given unsolicited advice to a layman to obtain counsel.27
A panel of the Board of Commissioners of Grievances and Dis-cipline of the Supreme Court of Ohio rejected the attorney's constitu-tional defenses and recommended that he be reprimanded publicly.2
The Board of Commissioners adopted the panel's findings, but recommended indefinite suspension from the practice of law.9 The Ohio Supreme Court then adopted the Board's findings and concluded that the attorney's con-duct warranted a public reprimand.0
22. 452 U.S. at 101. See generally 3 R. ROTUNDA, J. NOWAK & J. YOUNG, supra note 21,
at § 20.7 (general discussion of balancing in the context of free speech).
23. 452 U.S. at 103 ("The court identified nothing in this notice that it thought was improper and indeed gave no reasons for its negative ruling.").
24. Id.
25. See supra notes 16-18 and accompanying text.
26. 471 U.S. at 631. The Advertisement read as follows:
The Dalkon Shield Interuterine [sic] Device is alleged to have caused serious pel-vic infections resulting in hospitalization, tubal damage, infertility, and hyster-ectomies. It is also alleged to have caused unplanned pregnancies ending in abor-tions, miscarriages, septic aborabor-tions, tubal or ectopic pregnancies, and full-term deliveries. If you or a friend have had a similar experience do not assume it is too late to take legal action against the Shield's manufacturer. Our law firm is pres-ently representing women on such cases. The cases are handled on a contingent
fee basis of the amount recovered. If there is no recovery, no legal fees are owed
by our clients. Id. 27. Id. at 631-33. 28. Id. at 635. 29. Id. 30. Id. at 635-36.
1989-901 CLASS MEMBER SOLICITATION
On appeal, the Supreme Court of the United States applied the test for restricted commercial speech derived from Central Hudson Gas &
Electric Corp. v. Public Service Commission.1 Under that test, speech must concern lawful activity and not be false, deceptive, or misleading in order to qualify as protected speech;32 if the speech so qualifies, there must be a substantial government interest serviced by the restriction;33 the restriction must directly advance the government interest;34 and the restriction must be drawn no more extensively than necessary."
In applying these rules to the attorney's advertisement in Zauderer, the Court first found that the information and advice contained in the ad was not false or deceptive. The Court found that the restriction did not serve a substantial government interest; it distinguished Ohralik v. Ohio
State Bar Association,37
holding that "the substantial interests that justi-fied the ban . . . upheld in Ohralik cannot justify the discipline imposed
. . .for the content of [this] advertisement."3 The Court also dismissed the traditional concern over stirring up litigation and emphasized that potential litigants should be able to receive adequate information about
31. 447 U.S. 557 (1980). See generally 3 R. ROTUNDA, J. NOWAK & J. YOUNG, supra note
21, § 20.31 (discussing the four-part Central Hudson test); Note, Constitutional Protection
of Commercial Speech, 82 COLUM. L. REV. 720 (1982) (analyzing the history of commercial speech doctrine culminating with Central Hudson).
32. 447 U.S. at 563-64 ("[Tlhere can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, or commercial speech related to illegal activity" (citations omitted).). See
gener-ally Craswell, Interpreting Deceptive Advertising, 65 B.U.L. REV. 658 (1985) (discussing methods of defining and determining what is misleading commercial speech).
33. 447 U.S. at 564 ("The State must assert a substantial interest to be achieved by restrictions on commercial speech.").
34. Id. ("[Tihe restriction must directly advance the state interest involved; the regu-lation may not be sustained if it provides only ineffective or remote support for the govern-ment's purpose.").
35. Id. ("[Ihf the government interest could be served as well by a more limited restric-tion on commercial speech, the excessive restricrestric-tions cannot survive."); see also Zauderer, 471 U.S. at 638 (discussing applications of all four parts of the Central Hudson test).
36. 471 U.S. at 639.
37. 436 U.S. 447 (1978). For a general discussion of Ohralik, see infra text accompany-ing notes 62-67.
38. 471 U.S. at 642. The Court in Zauderer identified two factors that distinguished face-to-face solicitation from the advertisement at issue there. First, the Court observed that face-to-face solicitation was "rife with possibilities for overreaching, invasion of pri-vacy, the exercise of undue influence, and outright fraud." Id. at 641. Second, the Court noted that there were unique difficulties associated with face-to-face solicitation, that would frustrate any attempt at regulation short of an absolute ban because such solicitation was not open to public scrutiny. Id. (citing Ohralik, 436 U.S. at 446); see also Shapero v. Ken-tucky Bar Ass'n, 108 S. Ct. 1916, 1922 (1988).
their rights."' Finally, the Court questioned whether the rule, prophylac-tic in nature, was "narrowly crafted to serve the State's purposes. 4 0
The Court concluded that "[a]n attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive information and advice regarding the legal rights of poten-tial clients."4
III. GOVERNMENTAL INTERESTS
The key to the application of Zauderer to Bernard lies in the prong of the Central Hudson test requiring a substantial state interest." In or-der to clarify the state interest in Bernard, the source of the oror-der at issue there must be examined.
The district court's order in Bernard was drawn word-for-word from the 1980 version of the Manual for Complex Litigation.43 The Sample Pretrial Order in the Manual enumerated four governmental interests: 1) Concern with solicitation of representation of potential and actual class members not formal parties to the action; 2) solicitation of funds from potential or actual class members not formal parties to the action; 3) so-licitation by defendants of requests to opt out; and 4) communications
39. 471 U.S. at 642-43; see infra notes 140-50 and accompanying text. 40. Id. at 644.
41. Id. at 647.
42. See supra note 33 and accompanying text. Note that inasmuch as concern over
misleading communications is a state interest in Bernard, see infra notes 44-45 and accom-panying text, the Central Hudson prong addressing misleading speech, see supra note 32 and accompanying text, will also be drawn indirectly into the discussion.
43. See Bernard, 452 U.S. at 94 n.5. The MANUAL FOR COMPLEX LITIGATION is a
"col-lection of suggested procedures for handling complex cases, written by judges for judges after receiving the widest possible range of suggestions and criticisms from the bench and
bar." MANUAL FOR COMPLEX LrIGATION, at VII (5th ed. 1982). The Manual is not an
uncom-mon source in the formulation of local rules. See, e.g., Williams v. United States Dist. Court,
658 F.2d 430, 432 (6th Cir. 1981); Waldo v. Lakeshore Estates, Inc., 433 F. Supp. 782, 789
(E.D. La. 1977).
Note that the MANUAL FOR COMPLEX LITIGATION SECOND incorporated Bernard in its discussion of communication with potential or actual class members:
[Tihe court should not enter any order restricting communications between the litigants or their counsel and the potential or actual class members except when justified by actual or threatened misconduct of a serious nature. Before entry of such an order, there must be "a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties [which] should result in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances."
MANUAL FOR COMPLEX LITIGATION SECOND § 30.24 (West 1985) (citing and quoting Bernard, 452 U.S. at 101-02) (footnotes omitted).
CLASS MEMBER SOLICITATION
which may misrepresent the status, purposes, and effects of the action, and which may tend to confuse actual and potential class members." The proposed notice in Bernard" triggers only two of the foregoing concerns, namely, misleading communications and soliciting representation. This section shall examine those two concerns as they appear in Bernard in an effort to discern the extent of substantiality of the government interest there, by comparing those concerns to similar ones expressed in
Zauderer.
A. Misleading Communications
The rules prohibiting solicitation reflect the assumption that misrep-resentation is a key problem with solicitation." The state may regulate deceptive or misleading commercial speech."7 The Court has made clear that regulation is permissible "where the particular advertising is inher-ently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive."'
This concern with fraud and misrepresentation, as voiced in
Zauderer9 and growing out of Ohralik,5 is one that was expressly
ad-dressed by the district court's order in Bernard.5 The Court, however,
identified nothing improper with the notice;52 the trial court neither made findings of fact nor wrote an explanatory opinion5s
and thus did not find that the advertising was in fact deceptive.
44. 452 U.S. at 94 n.5. 45. See supra note 14.
46. See Schoor, Class Actions: The Right to Solicit, 16 SANTA CLARA L. REV. 215, 227 (1976) (discussing the effects of solicitation and the prevention of abuses stemming from it). 47. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563, 566 (1980) (state may regulate deceptive commercial speech, however, advertising promoting the use of electricity is not false or misleading); Virginia Bd. of Pharmacy v. Virginia Citi-zens Consumer Council, 425 U.S. 748, 771 (1976) (while state may regulate deceptive or misleading commercial speech, prescription drug price advertising is neither).
48. In re R.M.J., 455 U.S. 191, 202 (1982). For a general discussion of In re R.M.J., see
infra text accompanying notes 69-71.
49. 471 U.S. at 645 ("[D]istinguishing deceptive from nondeceptive advertising in vir-tually any field of commerce may require resolution of exceedingly complex and technical factual issues .... ).
50. See 436 U.S. at 464-66 (discussing the inherent opportunity for deception in face-to-face solicitation by attorneys).
51. See 452 U.S. at 94-95 & n.5. The order forbade any "communications from counsel or a party which [might] tend to misrepresent the status, purposes and effects of the class action .... Id. at 94 n.5.
52. Id. at 103. 53. Id. at 96.
The Supreme Court in Bernard believed that the district court "ac-ted upon the rationale ... that the court has the power to enter a ban on communications in any actual or potential class action as a prophylactic
measure against potential abuses . . . ."" The district court seems to
have attempted to employ the second prong of the R.M.J. test, namely, regulation where the advertising is inherently likely, to deceive." The Court has found, however, that lawyer advertising is not inevitably mis-leading.6 Thus, lawyer advertising does not automatically fall into the area of constitutionally permissible restriction, that is to say, unprotected commercial speech. Further, the Bernard Court, by requiring a clear rec-ord of specific findings,5 7 has recognized that the solicitation at issue
there was not inherently likely to deceive.
In Zauderer, the Office of Disciplinary Counsel stipulated, and the Supreme Court found, that the information and advice in the advertise-ment was neither false nor deceptive but, rather, was entirely accurate. 8 The Court concluded that the power to prohibit inherently misleading advertising could not "justify Ohio's decision to discipline appellant for running advertising geared to persons with a specific legal problem."59 Zauderer, then, serves both to sum up the application of restrictions re-garding misleading attorney solicitation and to address precisely the fraud concern as applied to the leaflets at issue in Bernard. Bernard gains a measure of constitutional protection from the Zauderer holding. B. Solicitation of Representation
Where the communication is not false, deceptive, or misleading, the state has the burden of establishing that a substantial government inter-est is directly advanced by the rinter-estriction.0 The Zauderer Court found that the Board of Commissioners believed that the restriction at issue
54. Id. at 103 n.18 (quoting the appellate court, 619 F.2d at 466). 55. See supra note 48 and accompanying text.
56. See Shapero v. Kentucky Bar Ass'n, 108 S. Ct. 1916, 1923 (1988) ("[Mlerely be-cause ... solicitation presents lawyers with opportunities for isolated abuses or mistakes does not justify a total ban on that mode of protected commercial speech" (citation omit-ted).); Bates v. State Bar of Ariz., 433 U.S. 350, 372 (1977) ("We are not persuaded that
restrained professional advertising by lawyers inevitably will be misleading."). 57. See 452 U.S. at 101, 103-04.
58. 471 U.S. at 639.
59. Id. at 641; see also Shapero, 108 S. Ct. at 1920 (holding that a blanket prohibition of targeted, direct-mail solicitation by lawyers is unconstitutional).
60. See Zauderer, 471 U.S. at 641; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 564 (1980).
CLASS MEMBER SOLICITATION
there served the same interests as those that justified the restriction in Ohralik.6
At issue in Ohralik was the direct, in-person solicitation of victims of an automobile accident, one of whom was in the hospital.6 2 The Court
held that in-person solicitation may be restricted with a prophylactic rule.63 The government interests identified by the Ohralik Court were protection against overreaching, invasion of privacy, and undue influ-ence. 6 These three state interests serve to enumerate and identify the specific concerns regarding solicitation of representation contained in the 1980 Manual for Complex Litigation and employed by the district court in Bernard.6 5
The Supreme Court held in Ohralik that a prophylactic rule prohib-iting in-person solicitation was constitutional. The Court noted, how-ever, that "[t]he entitlement of in-person solicitation of clients to the pro-tection of the First Amendment differs from that of the kind of advertising approved in Bates, as does the strength of the State's coun-tervailing interest in prohibition.' 67 In Bates v. State Bar of Arizona,
de-cided before Ohralik, the Supreme Court held that advertising by attor-neys could not be subjected to blanket suppression as a matter of constitutional law.6 The advertisements at issue in Bates were newspaper advertisements.
In re R.M.J.6 9 addressed the issue of direct mailings. The attorney there mailed announcement cards to individuals other than lawyers, cli-ents, former clicli-ents, personal friends, and relatives.7 0 In that case, the
Court applied the Central Hudson test, and in so doing extended the pro-tection of Bates to direct-mailings.71
61. 471 U.S. at 641. 62. 436 U.S. at 450-52.
63. Id. at 467. The Court noted that "[u]nlike the advertising in Bates, in-person so-licitation is not visible or otherwise open to public scrutiny .... It therefore is not
unrea-sonable, or violative of the Constitution, for a State to respond with what in effect is a prophylactic rule." Id. at 466-67.
64. Id. at 461-62, 464-65. Regulatory difficulties shall be discussed infra at notes 151-55 and accompanying text, while fraud has been discussed supra at notes 46-59 and accom-panying text.
65. See Bernard, 452 U.S. at 94 n.5. 66. 436 U.S. at 467; see also supra note 63. 67. 436 U.S. at 455.
68. 433 U.S. 350, 383 (1977) ("[Advertising by attorneys may not be subjected to blanket suppression.").
69. 455 U.S. 191 (1982).
70. Id. at 196. The enumerated categories of people were the only groups to whom the attorney was permitted to send announcement cards. Id.
71. Id. at 206-07. 1989-901
In Zauderer, the Court confirmed the limitation of the Ohralik
hold-ing. The Court stated that its "decision in Ohralik was largely grounded
on the substantial differences between face-to-face solicitation and the
advertising the Court had held permissible in Bates."'"7 Since Zauderer
dealt with advertising, it is understandable that the Court limited discus-sion to Bates. The Court's holding in R.M.J., however, suggests that the
Zauderer holding should not be limited to newspaper advertisements, as
evidenced by the Court's discussion of print advertising in general: It is apparent that the concerns that moved the Court in Ohralik are not present here. Although some sensitive souls may have found appellant's advertisement in poor taste, it can hardly be said to have invaded the privacy of those who read it. More significantly, appellant's advertise-ment . . . poses much less risk of overreaching or undue influence ...
[I]n most cases [print advertising] will lack the coercive force of the per-sonal presence of a trained advocate. . . .[A] printed advertisement is a means of conveying information about legal services that is more condu-cive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney. Accordingly, the substantial interests that justified the ban on in-person solicitation upheld in
Ohralik cannot justify the discipline imposed on appellant for the
con-tent of his advertisement.7 3
More recently, in Shapero v. Kentucky Bar Association,7 4
the Court addressed the issue of whether direct-mail solicitation to targeted individ-uals should be afforded constitutional protection under the Zauderer
holding. The attorney in that case applied to the Kentucky Attorney Ad-vertising Commission for approval of a proposed letter to be sent to indi-viduals against whom foreclosure suits had been filed.75 Although the Commission found the letter neither false nor misleading, the Commis-sion declined to approve it."s The Committee on Legal Ethics of the
Ken-72. Zauderer, 471 U.S. at 641. 73. Id. at 642.
74. 108 S. Ct. 1916 (1988).
75. Id. The proposed letter read as follows:
It has come to my attention that your home is being foreclosed on. If this is true, you may be about to lose your home. Federal law may allow you to keep your home by ORDERING your creditor [sic] to STOP and give you more time to pay them.
You may call my office anytime from 8:30 a.m. to 5:00 p.m. for FREE infor-mation on how you can keep your home.
Call NOW, don't wait. It may surprise you what I may be able to do for you. Just call and tell me that you got this letter. Remember it is FREE, there is NO charge for calling.
Id. at 1919.
CLASS MEMBER SOLICITATION
tucky Bar Association, in an opinion adopted by the Board of Governors of the Bar Association, upheld the rule upon which the Commission had based its decision." The Kentucky Supreme Court deleted the rule and replaced it with ABA Model Rule of Professional Conduct 7.3.7 The Su-preme Court of the United States held that a blanket ban of such solicita-tion was unconstitusolicita-tional. In so doing, the Court relied on the logic of In re R.M.J., as applied to the direct-mail issue79 and expanded the
Zauderer holding by equating direct-mail solicitation with print advertising.80
Thus, the leaflets at issue in Bernard,8' primarily through Shapero's expansion of Zauderer to include targeted direct-mail, fall within the bounds of the Zauderer decision.
Again, Zauderer affords the constitutional protection that was denied the attorneys in Bernard. "An attorney may not be disciplined for
solicit-ing legal business through printed advertissolicit-ing . . .regarding the legal
rights of potential clients."'
IV. THE EFFECTS OF FACTUAL DIFFERENCES ON THE APPLICATION OF
ZAUDERER TO BERNARD
There are two noteworthy factual differences between Bernard and Zauderer: direct-mail advertising as opposed to newspaper advertising, and an action filed as a class action as opposed to a potential class action.
77. Id. at 1920. The rule there, Rule 3.135(5)(b)(i), provided:
A written advertisement may be sent or delivered to an individual addressee only if that addressee is one of a class of persons, other than a family, to whom it is also sent or delivered at or about the same time, and only if it is not prompted or precipitated by a specific event or occurrence involving or relating to the ad-dressee or adad-dressees as distinct from the general public.
Id. at 1919 n.2.
78. Id. at 1920. The Model Rule provides:
A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, by mail, in-person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in-person, by tele-phone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circu-lars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.
Id.
79. Id. at 1923. 80. See id. at 1921-22. 81. See supra note 14. 82. Zauderer, 471 U.S. at 647.
While Zauderer does seem to speak in broad terms, these differences po-tentially serve to create divergent state interests, which may, in turn, weaken the application of the principles set forth in Zauderer to Bernard. The following two subsections shall discuss these two distinctions in an effort to address and resolve any such divergence of state interests.
A. Direct Mail v. Newspaper Advertising
While the language in Zauderer seems to include direct-mail adver-tising of the type involved in Bernard,8 3 the issue was not expressly
de-cided there. However, in Shapero," the Supreme Court explicitly broad-ened the coverage of Zauderer to include direct-mail solicitation.5 The Court there noted:
Our lawyer advertising cases have never distinguished among various
modes of written advertising to the general public. Thus, Ohio could no
more prevent Zauderer from mass-mailing to a general population his offer to represent women injured by the Dalkon Shield than it could pro-hibit his publication of the advertisement in local newspapers.86
Further, the Court rejected the argument that targeted direct-mail solicitation could be banned. The Court observed that "[tihe First Amendment does not permit a ban on certain speech merely because it is more efficient; the State may not constitutionally ban a particular letter
on the theory that to mail it only to those whom it would most interest is somehow inherently objectionable. '87
Finally, as in Zauderer, the Court in Shapero dismissed the concerns
voiced in Ohralik."8 The Court noted: "Like print advertising, petitioner's letter-and targeted, direct-mail solicitation generally-'poses much less risk of overreaching or undue influence' than does in-person
solicitation."89
83. See supra notes 72-73 and accompanying text. 84. 108 S. Ct. 1916 (1988).
85. See supra notes 74-80 and accompanying text. 86. 108 S. Ct. at 1921 (citations omitted).
87. Id. at 1921-22; see also Bates, 433 U.S. at 402 n.12 (Powell, J., concurring in part) ("[I]t is clear that today's decision cannot be confined on a principled basis to price adver-tisement in newspapers. No distinction can be drawn between newspapers and a rather
broad spectrum of other means-for example ... mail circulations.").
88. 436 U.S. 447 (1978).
89. 108 S. Ct. at 1922 (citing Zauderer, 471 U.S. at 642); see also 108 S. Ct. at 1922 ("[The] facile suggestion that this case is merely 'Ohralik in writing' misses the mark" (cita-tion omitted).).
CLASS MEMBER SOLICITATION
Accordingly, the distinction between direct-mail and newspaper ad-vertising appears to be one that is wholly without legal meaning or import.
B. Class Versus Potential Class
In Zauderer, the attorney was advertising for Dalkon Shield users as clients. Inasmuch as the cases of those injured by use of the Dalkon Shield present common questions of both law and fact that predominate over questions affecting individuals, those people are potentially a class."0 However, while the attorney acquired 106 clients as a result of the adver-tisement, he apparently did not seek to institute a class action.1 Bernard,
on the other hand, was filed as a class action,92 but the communication at issue there was to actual as well as potential class members. This distinc-tion may be important in redefining the state interests.9 Specifically, this Article will attempt to clarify that the state interests in Bernard are not strengthened by its differing factual underpinnings, but rather are weak-ened, making Bernard an even more worthy candidate for constitutional protection than Zauderer.
In Domingo v. New England Fish Co.,"4 the Ninth Circuit was faced with a communications restriction between potential class members and plaintiffs and their counsel imposed by the district court pursuant to a local rule based on the Manual for Complex Litigation."' The court of appeals held that Bernard was applicable even though the restriction was imposed on the class after certification while the restriction in Bernard was imposed before certification. The Ninth Circuit noted that "the pol-icies weighing in favor of communications restrictions after the class has been certified are much less compelling than before certification."' The court explained that the state interest in Domingo was abatement of con-flict of interest between class members and the class representative and her counsel,99 and emphasized the alignment of interests of the class members in dismissing conflict of interest concerns. "[The defendant's] liability had already been determined, class members who did not present
90. See FED. R. Civ. P. 23(c). 91. See Zauderer, 471 U.S. at 631. 92. Bernard, 452 U.S. at 92.
93. Note that this section will only touch on policy concerns. For a more detailed dis-cussion of policy, see infra notes 117-56 and accompanying text.
94. 727 F.2d 1429, modified, 742 F.2d 620 (9th Cir. 1984).
95. Id. at 1438 & n.6. Except for minor alterations, this local rule reads word-for-word
like the local rule at issue in Bernard. Compare id. with Bernard, 452 U.S. at 94 n.5.
96. 727 F.2d at 1441.
97. Id. 98. Id.
their claims would be barred by res judicata from ever obtaining relief. Class members' only interest was in presenting their claims to the court in the best possible light.""' Alignment of interests, then, is a key factor in evaluating the relative strengths of policies favoring communication restrictions.
In extrapolating the foregoing analysis to Zauderer and Bernard, it is clear that the attorney's clients in Zauderer were subject to less align-ment of interests in the event a class was formed than in Bernard. As to formation of a class, Zauderer was necessarily in a more embryonic stage than Bernard. Logic dictates that the potential class members in Zauderer would likely present a greater breadth and diversity of interests than those potential class members in Bernard. The policies weighing in favor of communications restrictions in Bernard, then, should be even
less compelling than those in Zauderer-at least as to class action consid-erations.00 Thus, Zauderer, in effect, proves too much as to this issue. That is to say, if Zauderer is afforded constitutional protection, and the greater encompasses the lesser, then Bernard must benefit by at least the same degree of protection, to the extent that the issue of alignment of interests comes into play.
More importantly, the Bernard Court, in applying the policies under-lying Federal Rule of Civil Procedure 23, employed a test similar to the state interest test and explicitly found those interests not compelling.'1 Thus, the Bernard decision itself may supply the resolution of this issue.
99. Id.
100. Because Bernard involves litigation in process, there is the added state interest of maintaining the integrity of the trial from the possible ill-effects of trial publicity. This state interest may be protected by a gag order, with which the attorney, as an officer of the court, would be obliged to comply.
However, the use of such a prior restraint is extremely limited in operation. The trial court must make specific findings establishing that the conduct of the attorney poses a clear and present danger of a serious and imminent threat to the fairness and integrity of the trial. See, e.g., Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 257 (7th Cir. 1975), cert.
denied, 427 U.S. 912 (1976). Further, such restraints in the interest of a fair trial must not
be vague or overbroad. See, e.g., CBS, Inc. v. Young, 522 F.2d 234, 239 (6th Cir. 1975); Chase v. Robson, 435 F.2d 1059, 1061 (7th Cir. 1970). The order must be narrowly drawn so as not to prohibit speech within first amendment rights that would not prejudice a fair trial.
See Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 183-84 (1968).
Given the severe restrictions on the use of a gag order in this context, it appears un-likely to prove problematic in consideration of the factual distinctions between Bernard and
Zauderer.
CLASS MEMBER SOLICITATION C. Summary
Neither Zauderer nor Bernard involved false or misleading commu-nications.102 Thus, the state interest in regulating those types of speech
was not present. As to the concerns about overreaching, invasion of pri-vacy, and undue influence, the Zauderer holding, which found these in-terests insufficient to justify restrictions on speech, is equally applicable to Bernard. The distinction between direct-mail and newspaper advertis-ing plays no role in determinadvertis-ing where constitutional protection should apply. Further, class action concerns weigh more favorably for Bernard than for Zauderer. Given the Zauderer holding, the government interests applicable in Bernard cannot satisfy the prong of the Central Hudson test that requires a substantial state interest.
Having laid the foundations for the constitutional protection of solic-itation by attorneys of class members and potential class members, this Article shall attempt to establish the basic parameters of this right so that practical guidelines will emerge to guide the attorney faced with this situation. Following this will be a discussion of the policy concerns in this area, addressing the benefits gained by this new measure of constitutional protection and the importance of the Supreme Court's explicit establish-ment of such protection.
V. PARAMETERS OF THE RIGHT TO SOLICIT CLASS MEMBERS
Fundamental to an understanding of the application of the constitu-tional right to solicitation of class members and potential class members are the constraints imposed on commercial speech by Central Hudson.0 3 It was that test that the Court used in Zauderer in determining that the speech there was constitutionally protected.'04 The four-prong test of
Central Hudson primarily acts as a constraint on the state in restricting
speech. However, by examining the manner in which the Court has per-mitted restriction on speech, the boundaries of the right may be estab-lished. This section will begin with an examination of the parameters of the protection offered by the Central Hudson test. That protection will then be compared to the protection offered by Federal Rule of Civil Pro-cedure 23 in order to show how closely they align.
102. Zauderer did involve a nondisclosure. 471 U.S. at 650-53. The nondisclosure, however, involved a separate communication than that discussed in this Article and is not pertinent to the discussion at hand.
103. See supra notes 31-35 and accompanying text. 104. Compare id. with Zauderer, 471 U.S. at 638, 644.
Neither misleading speech nor speech concerning unlawful activity comes within the protection of Central Hudson.10 5 This precept was rein-forced by R.M.J.0 6 The provision of constitutional protection, then, does not open the doors for flagrant misuse of the first amendment, because prior to affording such constitutional protection, a determination must be made as to the nature of the speech, and whether it is worthy of protec-tion at all.
With regard to the requirement of a substantial government interest in regulating speech, the thrust of this Article has been to show that state interests regarding solicitation of potential members of a class by direct mail or advertising are not, in fact, substantial. Ohralik makes clear, how-ever, that the interests peculiar to face-to-face solicitation are indeed sub-stantial.117 Therefore, it is improbable that face-to-face solicitation of
po-tential class members will be afforded protection by way of Central
Hudson. There is one notable exception to the Ohralik rule. In NAACP v. Button,"'s face-to-face solicitation was upheld. Because of the nature of the NAACP, the communication was seen as a form of political expres-sion.10 9 In In re Primus," although the solicitation by the American Civil Liberties Union was by way of direct-mail, the Court compared the ACLU in Primus to the NAACP in Button and found the solicitation to be political expression."
The Court, in striking down the restriction in Button, noted the lack of pecuniary gain and again stressed the advancement of political be-liefs." Thus, Ohralik is largely limited to cases where the attorney's pe-cuniary gains are the motivating force. In sum, solicitation of potential members of a class through direct-mail or advertising is constitutionally protected. Face-to-face solicitation, however, is only permissible where political expression, rather than pecuniary gain, is at stake.
Disregarding false or misleading speech and face-to-face solicitation, constitutional protection by way of the Central Hudson test primarily
105. See supra notes 46-59 and accompanying text.
106. See supra note 48 and accompanying text. 107. See supra notes 66-67 and accompanying text. 108. 371 U.S. 415 (1963).
109. Id. at 429. While the Court never really dealt with this issue in Bernard, it did point out that the attorneys there worked for the NAACP. Bernard, 452 U.S. at 99 n.11. That factual component has not been included in this Article's analysis of Bernard precisely because the Court did not deal with it. It should be noted, though, that that factor only serves to strengthen the argument that the attorneys' actions in Bernard are worthy of first amendment protection.
110. 436 U.S. 412 (1978). 111. Id. at 422-23. 112. Id.
CLASS MEMBER SOLICITATION
guarantees that a blanket prohibition will not be applied. Courts may still make individual determinations, but in so doing they must support those determinations with findings of facts specific to the case. Prior restraint in the form of a blanket ban will not pass constitutional muster. But not all direct-mail solicitation may be protected. For example, a telegram re-ceived by the family of an accident victim requesting that the family con-tact the attorney may be constitutionally banned."' The concerns in
Ohralik of overreaching, undue influence, and invasion of privacy are
par-ticularly strong in this example. However, "[b]ecause letters designed to pressure the recipient can be dealt with on an individual basis, a blanket ban on attorney-issue notice is not the least restrictive means of prevent-ing such attorney abuse, and thus should not pass muster under the first amendment.""4
The test used by the Supreme Court in Bernard, based on Federal Rule of Civil Procedure 23 is very similar in its application to the Central
Hudson test. First, the court must determine if the gag order frustrates
any of the underlying policies of Rule 23;"1 if so, the court must then determine if the order is the least restrictive means available; and finally, the court must make specific findings of fact regarding abuses or poten-tial abuses."' Inasmuch as promoting the underlying policies of Rule 23 is itself a state interest, frustration of those policies works against any other interest that state may have. As for class action solicitation, the Central
Hudson requirement of a substantial state interest can be viewed as
cor-relative to a determination of the effect of the gag order on the policies of Rule 23. Under Central Hudson, the court looks to see that state interests are promoted through a speech restriction, while under Bernard, the court looks to see that state interests are not frustrated through speech restriction. The requirement in Bernard of specific findings of fact
guar-113. See Adams v. Illinois Supreme Court Attorney Registration & Disciplinary
Comm'n, 617 F. Supp. 449, 454 n.2 (N.D. Ill. 1985), aff'd, 801 F.2d 968 (7th Cir. 1986). 114. Note, Sending Notice to Potential Plaintiffs in Class Actions Under the Age
Discrimination in Employment Act: The Trial Court's Role, 54 FORDHAM L. REv. 631,
654-55 (1986) (discussing the concern with the stirring up of litigation within the context of the Age Discrimination in Employment Act); cf. Shapero v. Kentucky Bar Ass'n, 108 S. Ct. 1916, 1923 (1988) (noting that the state can regulate abuses of targeted direct-mail solicita-tion through far less restrictive means than a blanket ban).
115. See supra note 20.
116. Bernard, 452 U.S. at 101-02. The Court noted:
[Aln order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of parties. • . .[Sluch a weighing . . .should result in a carefully drawn order that limits
speech as little as possible .. Id. (emphasis added).
antees the same protection from a blanket restriction as does the Central Hudson test. Further, both tests have a least restrictive means prong. In sum, there is little difference between the two tests, where they are applicable.
The next section addresses policy reasons behind the provision of constitutional protection to direct-mail solicitation of potential class members, including a discussion of the limits of applicability of the Ber-nard rule.
VI. EXTRAPOLATION OF THE EFFECTS OF APPLICATION OF ZAUDERER TO BERNARD
One of the primary benefits resulting from recognition of a first amendment right to send notice to potential class members is uniformity. The Bernard rule is based on Federal Rule of Civil Procedure 23. This Rule, however, is not the sole method of carrying forward a federal class action. There are several other statutory provisions for class actions, under which Rule 23 has been held to be inapplicable. 17 Thus, solicita-tion permitted by Bernard cannot govern statutory class acsolicita-tions. Because Zauderer is based on the Constitution, it is not limited by the restrictions placed on a rule based on statutory law."8 Thus, uniformity would be achieved for class actions not brought under Rule 23.
The Magnuson-Moss Act,"9 which imposes minimum standards for manufacturers' warranties and provides avenues for consumer redress, al-lows for class actions. 20 In order to maintain such an action, however, a minimum of 100 named plaintiffs is required.'2' Not only must the plain-tiffs be identified at the time the court certifies the action, 22 but some
courts will dismiss complaints where the 100-plaintiff requirement has
not been met.23
117. See infra notes 127-36 and accompanying text.
118. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175-80 (1803) (holding that the
Constitution is fundamental and paramount law and that the Court has the duty to declare
a statute unconstitutional and refuse to enforce it when it is repugnant to the Constitution). 119. Magnuson-Moss Warranty Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301-2312 (1988).
120. 15 U.S.C. § 2310(e) (1988).
121. 15 U.S.C. § 2310(d)(3)(C) (1988) ("No claim shall be cognizable in a suit brought under paragraph (1)(B) of this subsection . . .if the action is brought as a class action and the number of named plaintiffs is less than one hundred.").
122. See Barr v. General Motors Corp., 80 F.R.D. 136 (S.D. Ohio 1978) (requiring that plaintiffs be identified at time of certification of action).
123. See Herndon, Consumer Class Actions and the Effect of Magnuson-Moss, 15 Fo-RUM 914, 927-28 (1980) (discussing cases where courts have held that a case lacking 100 named plaintiffs will be dismissed).
CLASS MEMBER SOLICITATION
Logic and practicality dictate that solicitation of potential class members may be necessary under this act to ensure that the 100-plaintiff requirement is met. The requirement of participation by persons other than the attorney's client creates an ethical tension.12 Further, the local rule suggested by the Manual for Complex Litigation, the one used in
Bernard, aggravates the problem of rounding up 100 plaintiffs in an
ethi-cal manner."5 The combination of the 100-plaintiff requirement com-bined with the problems of soliciting potential plaintiffs has rendered the Magnuson-Moss Act all but useless.12
By requiring the application of Rule 23 in a specific circumstance under Magnuson-Moss,27 Congress has undercut the general applicability
of Rule 23 to Magnuson-Moss suits, limiting its application to a pre-scribed area.2 s It thus follows that since Bernard is based on Rule 23, it is, absent an express judicial decision, inapplicable to Magnuson-Moss suits; Bernard does not offer protection to attorneys bringing cases under the Magnuson-Moss Act. The same solicitation permissible in Rule 23 class actions under Bernard, then, may not be protected in Magnuson-Moss class actions. Ironically, the 100-plaintiff requirement makes solici-tation far more important in the latter action. Establishment of a consti-tutional right would resolve this problem; cases brought under Magnuson-Moss would be afforded the same kind and extent of protection as that offered in Zauderer, with the result that Magnuson-Moss would become a more vital and meaningful act.
Under the Fair Labor Standards Act,12 employees can sue em-ployer's on their own behalf and on behalf of similarly situated
employ-124. See Comment, Magnuson-Moss Federal Court Class Actions-Federal Right
Without a Federal Forum, 11 CUMB. L. REV. 133, 138-44 (1980) (discussing the tension cre-ated by various Disciplinary Rules and Ethical Considerations of the Code of Professional Responsibility of the American Bar Association, where the Code, at various points encour-ages: zealous representation of the client; assistance of laypersons to recognize legal problems as long as pecuniary gain is not the motive; no self-recommendation; and no ac-ceptance of employment based on advice given).
125. See Herndon, supra note 123, at 928.
126. See Comment, supra note 124, at 155-56; see also Note, The Magnuson-Moss Act
Class Action Provisions: Consumers' Remedy or an Empty Promise?, 70 GEo. L.J. 1399,
1400-01 (1982) (discussing the reasons behind the paucity of class actions brought under Magnuson-Moss).
127. 15 U.S.C. § 2310(a)(3)(c)(ii) (1988) ("[Tlhe representative capacity of the named plaintiffs shall be established in the application of rule 23 of the Federal Rules of Civil Procedure.").
128. See Comment, supra note 124, at 1409 (discussing Congressional intent regarding
the application of FED. R. Civ. P. 23 to the Magnuson-Moss Act).
129. 29 U.S.C.A. §§ 201-219 (1982 & West Supp. 1989). 1989-90]
ees.130 However, an employee must give consent in writing before being
considered a party plaintiff. 3' Since plaintiffs must "opt-in," notification or "solicitation" of potential class members becomes vitally important. Again, however, certification of the class is not under Rule 23, but rather under 29 U.S.C. § 216(b).'32 Because Rule 23 does not apply, the protec-tion in Bernard is not available. Once more, in a situaprotec-tion where commu-nication with potential class members is especially important, the limits of the Bernard decision prevent its use. A constitutional right based on Zauderer, however, would make available to the attorney the kind of pro-tection needed under the Fair Labor Standards Act in order to alleviate this problem.
The Age Discrimination in Employment Act (ADEA)"3 incorporates Section 216(b) of the Fair Labor Standards Act.34 Because costs under the ADEA are large and awards are small, the aggregate of claims under Section 216(b) is necessary for private actions.'35 It therefore becomes im-perative that plaintiffs' attorneys contact potential class members. How-ever, because Rule 23 does not apply, Bernard does not apply.3 Again, Zauderer offers protection to attorneys under the Constitution in a situa-tion where the rule of Bernard falls short of the mark.
Bernard is not only inapplicable to federal class actions not brought under Rule 23, but is also not determinative of class actions brought in state court.'37 Consequently, not only are some states at odds with the federal government, but they may also be in disagreement with each other. This situation presents a very real opportunity for forum shopping
130. 29 U.S.C.A. § 216(b) (1982 & Supp. 1989) ("An action ... may be maintained . . .by any one or more employees for and in behalf of himself or themselves and other
employees similarly situated." (emphasis added)).
131. Id. ("No employee shall be a party plaintiff .. unless he gives his consent in writing to become such a party .... ").
132. See Sussan & Scher, Class Actions Under the Fair Labor Standards Act, 11
CLEARINGHOUSE REV. 713, 715-16 (1977) (discussing the differences between class actions brought under Rule 23 and § 216(b)).
133. 29 U.S.C. §§ 621-634 (1982 & Supp. V 1987 & West Supp. 1989).
134. Id. § 626(b) ("The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in section . . .216 (except for subsection (a) thereof) .... ").
135. See Note, supra note 114, at 632.
136. See id. at 634 n.15, 658 n.162 (discussing cases holding FED. R. Civ. P. 23 and
Bernard inapplicable to ADEA class actions).
137. This is especially troublesome as some state courts favor a more restrictive ap-proach to solicitation in the class action context. See id. at 632.
CLASS MEMBER SOLICITATION
and its attendant inequities to play a major role in class actions.138
Be-cause Zauderer is founded in the first amendment, the application of
Zauderer to the facts in Bernard would establish a uniform rule
applica-ble not only to all state class actions, but to all federal class actions, even those brought outside of Rule 23.'
Zauderer has the potential to unify all class actions as to permissible
solicitation. This application would eliminate both forum shopping for differing solicitation rules and inequitable situations where differing de-grees of solicitation are allowed depending on the nature of the suit.
One of the concerns expressed in Bernard was the potential stirring up of litigation by attorneys."'4 Many courts, in the interest of preventing
the stirring up of litigation, refuse to authorize the sending of notice to potential plaintiffs."" In Bernard, as suit was already under way, litiga-tion could not be stirred up, and further, since many claims may be re-solved at one trial, litigation may have, in fact, been decreased.4' The
Court in Zauderer firmly dismissed the fear of stirring up litigation as a viable justification for restraint on solicitation:
[W]e cannot endorse the proposition that a lawsuit, as such, is an evil .... There is no cause for consternation when a person who believes in good faith and on the basis of'accurate information regarding his legal rights that he has suffered a legally cognizable injury turns to the courts for a remedy . . . .That our citizens have access to their civil courts is not an evil to be regretted; rather it is an attribute of our system of jus-tice in which we ought to take pride. The State is not entitled to inter-fere with that access by denying its citizens accurate information about their legal rights. Accordingly, it is not sufficient justification for the dis-cipline imposed on appellant that his truthful and nondeceptive advertis-ing has a tendency to or did in fact encourage others to file lawsuits.'43
This notion is in accord with the Central Hudson requirement that a re-striction be no broader than necessary. Because the stirring up of
litiga-138. Plaintiffs here would forum shop to avoid overly restrictive state rules. Inequity results in that plaintiffs who either do not forum shop or do so unwisely or unsuccessfully are at a disadvantage relative to those who were successful.
Note that inequities also result within the federal forum since the extent of solicitation permitted may well depend on the statute under which a class action was brought.
139. See supra note 118 and accompanying text; see also Martin v. Hunter's Lessee,
14 U.S. (1 Wheat.) 304, 337-41 (1816) (holding that the Court can review the constitutional-ity of a decision by a state's highest court).
140. 452 U.S. at 100 n.12.
141. See, e.g., Note, supra note 114, at 652-53 & n.122 (discussing concerns in regard
to solicitation and stirring up litigation in the context of ADEA class actions). 142. See id. at 654 & n.131.
143. 471 U.S. at 643.
tion is no more serious a problem with direct-mail than it was with the
advertising in Zauderer,'" a court has the same least restrictive means available to it,"45 and a blanket ban based on the prevention of stirring up litigation cannot survive.'46
Growing out of this notion of access to the courts is the principle of an informed citizenry. The idea is that solicitation in this context will maximize access to the courts by increasing the flow of information to those who would have otherwise had no knowledge of their right to re-ceive judicial redress for wrongs committed against them."" The free flow of commercial information has been and remains at the root of the com-mercial speech doctrine."' This concern is also voiced in Zauderer,"49 and is one that is particularly appropriate in the class action context, where the information has immediate consequences as to the availability of legal redress. The Seventh Circuit has recognized this need for an informed citizenry as to direct-mail solicitation.150
Thus Zauderer, as interpreted by Shapero, and in conjunction with Adams, may provide the extension of this rationale to the facts in Bernard.
A final consideration is the degree to which a rule is administrable. In Zauderer the Court rejected such concerns as warranting blanket re-strictions, and in so doing tied in this problem with the informed citi-zenry rationale. "The . . .contention that the problem of distinguishing deceptive and nondeceptive legal advertising is different in kind from the
144. See supra notes 74-80 and accompanying text.
145. See Shapero v. Kentucky Bar Ass'n, 108 S. Ct. 1916, 1923 (1988) (describing means less restrictive than blanket ban on targeted direct-mail solicitation).
146. See id. at 1916 (holding blanket ban on targeted direct-mail solicitation unconsti-tutional); Note, supra note 114, at 656 (discussing concerns regarding the stirring up of litigation in ADEA class actions).
147. See Schoor, supra note 46, at 243-44 (discussing the role of the courts in class solicitation); see also Shapero, 108 S. Ct. at 1924.
148. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563
(1980) ("The First Amendment's concern for commercial speech is based on the
informa-tional function of advertising."); Virginia Bd. of Pharmacy v. Virginia Cititzens Consumer Council, 425 U.S. 748, 763-65 (1976) ("[Tjhe free flow of commercial information is indis-pensable" (citation omitted).).
149. See supra note 143 and accompanying text. But see Note, Commercial Speech
and Disciplinary Rules Preventing Attorney Advertising and Solicitation: Consumer Loses with the Zauderer Decision, 65 N.C.L. REv. 170 (1986) (discussing the injuries suffered by
consumers due to lack of information available regarding legal services in the marketplace, attributed partially to the inadequacy of the Zauderer decision).
150. See Adams v. Illinois Supreme Court Attorney Registration & Disciplinary
Comm'n, 801 F.2d 968, 973 (7th Cir. 1986) ("Prohibiting direct-mailings to those who might most desire and might most benefit from an attorney's services runs afoul of the concerns for an informed citizenry .... ").
